2011 Y L R 215
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
Haji ABDUL BARI ---Petitioner
Versus
SUB -DIVISIONAL OFFICER, SUB -DEVISION QESCO and another ---Respondents
Civil Revision No.295 of 2003, decided on 19th July, 2010.
(a) Electricity Act (IX of 1910) ---
----Ss. 54-C, 2(c), 6, 16, 24, 25 & 26 -A---Electricity Rules, 1937, Abridged Conditions,
Condition No.16 ---Specific Relief Act (I of 1877), S.42 ---Suit for declaration ---
Maintainability --- Scope ---Trial Court dismissed the suit ---Appellate Court dismissed appeal
against ---Plaintiff contended that he was not obliged to pay the electricity bills issued in the
names of his previous tenants ---Plaintiff also filed application for injunction to restrain the
defendant/WAPDA from demanding payment of disputed dues till th e correction of the bill
and sought restoration of electricity connection ---Defendant/WAPDA contended that the
landlord, and not the tenant, was responsible for payment of electricity bills ---Validity ---
Section 54 -C of the Electricity Act, 1910 barred juri sdiction of the court only in matters
relating to disconnection and restoration of energy supply by the licensee but did not preclude
an aggrieved person from filing suit against any act of the licensee/ WAPDA; relief, however,
was conditional on payment o f dues/outstanding ---Courts below failed to appreciate that the
plaintiff had also sought several reliefs which were not related to payment of dues, therefore,
both the courts wrongly found that the suit was not maintainable ---Trial Court could have
declin ed the relief of restoration of connection but other reliefs sought by the plaintiff should
have been considered and awarded --Electricity connections were installed at the premises
owned by plaintiff and were disconnected seventeen years ago but he remaine d silent all
these years ---Though the said premises was in occupation of tenants yet plaintiff; being
owner/landlord, was a `consumer' as defined by S.2(c) of the Electricity Act, 1910 ---Plaintiff,
therefore, was liable to pay the outstanding charges of el ectricity supply ---Plaintiff had
violated the Condition No.16 of the Abridged Conditions of Supply . annexed to Electricity
Rules, 1937 by extending electricity supply to the disconnected portions of his property
which amounted to dishonest abstraction or consumption of energy under S.26 -A of the
Electricity Act, 1910 ---Relief of restoration of electricity could not be granted to the plaintiff
until he had paid the outstanding dues ---Plaintiff could not establish that charges were
wrongly calculated by defe ndant ---Suit was dismissed accordingly.
(b) Electricity Act (IX of 1910) ---
----S. 54-C---Bar of jurisdiction ---Principle and applicability ---Scope ---Section 54 -C of the
Electricity Act, 1910 barred jurisdiction of the court in matters relating to di sconnection and
restoration of energy supply to the licensee but did not preclude an aggrieved person from
filing suit against any act of the licensee.
Miss Sarwat Hina for Petitioner.
H. Shakil Ahmed for Respondent.
Date of hearing: 16th April, 2 010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .----Instant petition has been filed by the petitioner
being aggrieved of judgment dated 17 -2-2003 of Civil Judge, Chaman, whereby his suit was
dismissed, he preferred appeal, which was also dismissed through judgment dated 1 -7-2003
by Additional District Judge, Pishin. It is his contention that both the courts failed to
appreciate the evidence produced by him. The pleadings are not properly understood, while
judgments were made on misreading of evidence, thus comes to the wrong conclusion.
Furthermore, the case was twice remanded to the trial Court by the appellate court, but the
WAPDA Authorities failed to produce the record pertaining to the electricity bills on
occasion that the record has been destroyed. T he orders were not complied, while both the
courts failed to take into consideration this aspect of the case. He has prayed for setting aside
of impugned judgments and his suit be decreed in his favour.
As per record a suit was filed by the petitioner se eking declaration to the effect that he is
responsible to make payment of electricity consumer bill as per relevant record of WAPDA
pertaining to six shops, one hotel and inn (Masafar Khana) while his previous tenants be
declared as responsible to make pay ment of consumer electricity bills. Further, declared that
the respondent cannot demand for the outstanding amount in respect of bills issued in name
of the tenants and he has been wrongly compelled to make payment of the amount on basis of
self-calculated meter reading without examination of meter physically. He prayed for
injunction to the effect that the respondents/defendants be directed to maintain the record in
his and' his son's name, whereafter, correct electricity consumer bills be issued in their names
for each shop; hotel and inn. Further, respondents/defendants be restrained from making
demand for payment of disputed dues till rectification, while the electricity connection be
restored and consumer meter reading card be issued in his favour.
The respondents/defendants in their joint reply strongly contested the suit while raised several
legal objections on maintainability of the suit. It is objected that deficit court -fee has been
paid, further as per relevant Rules no suit can be filed against WAPDA until and unless
outstanding amount is paid. Furthermore, as per Rules landlord is responsible for payment of
outstanding amount. On merits they admitted ownership of the petitioner in respect of
property in question. According to them the petitioner / plaintiff applied for connection of
electricity in respect of only one shop bearing Account No.00165007, while rest of the
electricity connections were sanctioned in names of Farooq, Account No.00162115,
Rehmatullah Account No.00162507, Rehmatullah Accou nt No.00162605,
Rehmatullah Account No.00162703, Rehmatullah and his tenant Ghulam Farooq account
No.00162801 and Rehmatullah and his tenant Mazhar Jamil Account No.00162909. As such
till present an amount of Rs.138084 is outstanding against mentioned cons umers. Further, as
per Electricity Rules the landlord is responsible for payment of electricity dues instead of
tenant. No changes are made in ledger/ record by the WAPDA authorities with collusion of
tenants. While the account numbers are the same. Furthe rmore, as per section 24(2) of West
Pakistan Land Revenue Act a defaulter has no right to file suit against WAPDA. The
electricity was disconnected due to non -payment of arrears. They prayed for dismissal of the
suit.
The perusal of record reveals that i nitially the suit was decided through judgment made on
26-8-2000 whereby the suit was rejected, while accepting appeal the appellate court through
order dated 29 -3-2001 remanded the case for deciding it afresh after framing of issues. On the
same issues we re framed on 17 -9-2001. After completion of evidence from both the sides the
case was decided through judgment made on 31 -12-2001, whereby the suit was dismissed.
The appeal preferred by the petitioner/plaintiff was accepted with observation that sufficien t
evidence is not available on record to draw a right conclusion, thus case was remanded for re -
writing of judgment after recording of additional evidence. The case was again decided
through judgment dated 17 -2-2003, whereby the suit was dismissed for non -compliance of
section 54 -C of Electricity Act, 1910. The appellate court while upholding the judgment of
the trial Court dismissed the appeal through judgment made on 1 -7-2003. Now the instant
petition has been filed assailing both judgments of trial and a ppellate courts.
During course of arguments the learned counsel for the petitioner contended that he is
recorded owner of premises in question. Further, as per direction of appellate court, while
remanding the case, the respondent failed to produce the r elevant record. This fact has not
been considered that the disputed bills are neither in his name, nor in name of his tenants.
While in rebuttal counsel for the respondent strongly contested the points raised by the
counsel for the petitioner. According to him there are concurrent findings of the courts below.
Thus no interference is required to be made as no illegality is pointed out. Further, no
agreement between the parties is available. Further contended that use of electricity by the
petitioner is not denied by the petitioner/plaintiff in his plaint. The petitioner being the owner
cannot deny for his responsibilities. Further contended that as meter is not fixed on the
premises, therefore, bill is to be calculated on basis of Policy made in same respect .
The perusal of impugned judgments of both trial and appellate court reveals that though the
merits have been considered, discussed and findings are given, but the suit at last was
dismissed in view of proviso of section 54 -C of Electricity Act 1910. Se ction 54 -C states as
under: -
"54-C. Bar of jurisdiction ---(1) Where a licensee gives a notice referred to in
subsection (1) of Section 24 or discontinues supply of energy to a premises under the
provisions of this Act, no Court shall make an order prohib iting the licensee from
discounting supply of energy to the premises, or requiring him to restore supply of
energy to such premises, and any such order made before the commencement of the
Electricity (Amendment) Ordinance, 1979, shall cease to have effect:
Provided that nothing contained herein shall apply to a case in which the plaintiff
applicant or appellant, within a period of thirty days of the aforesaid date or at the
time of filing the suit, application or appeal, as the case may be, deposits with the
Court the amount assessed against him by the licensee and all further charges of the
licensee as and when they become due; and in the event of this failing to do so, any
order prohibiting the licensee from discontinuing the supply of energy to the prem ises
or requiring him to restore the supply of energy to the premises, if already made, shall
cease to have effect.
(2) Where an amount has been deposited under subsection (1), the Court shall direct it
to be deposited in a Scheduled bank in the name of the licensee to the effect that in the
case, the suit or appeal is decided against him, he shall repay the said amount to the
plaintiff or appellant, as the case may be, with such reasonable return as the Court
may determine."
This section is required to be read with section 24 subsection (1) of Electricity Act,
1910, as notice is required to be given under said section, which states as under: --
"24. Discontinuance of supply to consumer neglecting to pay charge .---(1) Where
consumer neglects to pay any charge for energy or any sum, other than a charge for
energy, assessed against him by a licensee in respect of supply of energy to his
premise, the licensee may after giving not less than seven clear day's notice in writing
to such consumer and without pre judice to his right to recover such charge or other
sum by suit or otherwise, cut -off the supply and for that purpose cut or disconnect any
electric supply -line or other works, being the property of the licensee, through which
energy may be supplied to suc h premises or to any other premises, other than
domestic premises, running distinctly in the name or other sum, together with any
expenses incurred by him in cutting off and reconnecting the supply and the minimum
charges on account of continued reservatio n of supply during the period of such
discontinuance, are paid, but no longer."
In present case the position is some how different, as notice in question i.e. Notice dated 30 -
6-2000, which is present on record as Exh.P/2 and also as Exh.D/8, it is only t o the extent of
payment of outstanding dues. There is no notice for disconnection. As this fact has already
come on record that the electricity connections in respect of which dues are demanded have
already been disconnected several years back. As per plea taken in the plaint the electricity
connections of questioned shops were disconnected six years back, while of Musafir Khana it
was disconnected 17 years back. Thus in view of the same there is no notice pertaining to
disconnection of electricity connecti on supplied to the questioned premises rather it is only
for payment of arrears of electricity charges. Further, as per section 54 -C there is bar of
jurisdiction on the courts only to the extent of prohibiting the licensee from discontinuing
supply of ener gy to the premises or requiring the licensee to restore the supply of energy to
such premises, when the consumer neglects to pay any charge for energy or any sum other
than charge for energy, assessed by the licensee in respect of supply of energy to the
premises. As such there is no bar for filing of the suit by an aggrieved person against any act
of the QESCO/WAPDA being the licensee. But the relief to the extent, as mentioned above,
is conditional with payment of amount so demanded. In present case the t rial Court though
discussed all the issues while giving findings on all of them, but dismissed the suit on basis of
provisions contained in section 54 -C of the Electricity Act, 1910. The appellate court also
hold same view. Both the courts below failed to observe that the petitioner in his plaint has
not only prayed for restoration of electricity connection rather in addition he has prayed for
several other reliefs i.e.: --
(a) to declare that the plaintiff is responsible to make payment of electricity con sumer bill
as per ledger/Qalam Zoo record of WAPDA pertaining to six shops, one hotel and
inn/Musaferkhana;
(b) to declare that previous tenants of plaintiff who were in occupation of plaintiff's shops
and with the collusion of whom the material changes in respect of ledger and
electricity consumer bill have been brought by the WAPDA officials are responsible
to make payment of bills which amounts as per consumer electricity bills;
(c) to declare that the defendants have no authority to make demand for making of
outstanding amount from plaintiff in respect of electricity consumer bills which had
been issued in the name of respective tenants;
(d) to declare that the plaintiff has wrongly been compelled to make payment of
outstanding amount on the basis of Self calculated meter reading by concerned meter
reader without physically examination of meter;
(e) to direct the defendants jointly and severally to maintain ledger and Qalam Zoo
record as it was previously in the name of plaintiff and his son namel y Rehmatullah
and after maintenance of such record correct and exact electricity consumer bills may
be issued in their respective names in respect of each shop, hotel and inn;
(f) to direct the defendants jointly and severally by means of permanent injun ction to
compel the plaintiff to make demand for making payment of disputed due amounts till
rectification, clearance and disposal of instant suit;
(g) to direct the defendants jointly and severally to issue consumer meter reading card in
favour of plain tiff in respect of shops, hotel and inn separately and respectively.
These reliefs are not related to payment of amount assessed by the licensee. Both the courts
have made an error while holding that without payment of arrears the suit is not maintainabl e.
The trial Court may have refused the relief to the extent of restoration, but may have
considered and granted or otherwise the remaining reliefs as prayed by the petitioner.
In present case the matter in dispute is the notice issued by the respondent/ licensee ' to the
petitioner/ consumer on 30 -6-2000 whereby he was directed to make payment in respect of
six electricity connections existed in names of his son and shopkeepers amounting to
Rs.138084, being arrears. Being aggrieved of the same the petitio ner approached the court,
contesting the notice. He claimed himself to be owner of six shops, hotel and an inn (Masafar
Khana) wherein electricity connections were provided on his request, which were on name of
him and his son, while he let out these shops to different tenants with condition that bills of
electricity be paid by them. But contrary to the same the tenants with collusion of WAPDA
officials succeeded to change the record pertaining to account number and name of subscriber
taking, advantage of t he same the tenants, in occupation of said shop, used to receive bills,
but failed to make the payment, he was unaware of the situation. Furthermore, the electricity
connections of four shops were disconnected six (6) years back and of inn seventeen (17)
years back despite the same electricity consumer bills were issued. On getting knowledge
about the material change managed to be made in record by the tenants, he brought the facts
in knowledge of respondents despite his efforts made since April, 1993 to 26 th June, 2000
nothing positive happened and his grievance was not redressed. The main plea of the
petitioner/plaintiff is that he is not bound to pay the questioned amount, which is required to
be paid by the previous tenants. The respondents denied effect ing of any sort of change in
relevant record though they admitted the petitioner being owner of the shops, but it is
contended by them that the petitioner applied for only one connection of a shop, while rest of
the connections were on names of other consu mers, named in written statement. They denied
any sort of collusion between the tenants and the employees thereby making change in the
record. Further, despite having knowledge the petitioner failed to deposit the outstanding bills
in time. He being landlo rd thus as per Rules responsible for payment of electricity dues
instead of tenant.
In addition to his above mentioned plea the petitioner/plaintiff showed his willingness for
making payment of outstanding dues pertaining to electricity consumer bills in respect of
shops in questions as per ledger and Qalam Zoo record subject to the condition that if the
amount be adjusted in fixed bill, payment of which be made in shape of current bill. Further,
if consumer meter reading card of each unit be issued, will also redress his grievance. It is
further contended that the respondents would have no authority to demand payment of
outstanding amount which is payable by previous tenants. Keeping in view his own pleadings
it is an admitted fact that electricity connec tions were installed in the premises owned by the
petitioner in year 1981 -82, while the dues in respect of electricity consumption are
outstanding in respect of the premises allegedly owned by the petitioner, which are asserted
to be in occupation of the t enants. Though the petitioner has asserted that the tenants used to
receive bills but avoid to make the payments. Despite having knowledge of the same nothing
has been placed on record that what legal steps had been taken or efforts had been made by
him fo r recovery of said amount from his previous tenants and for resolving the issue with the
concerned Authorities. According to him he on coming to knew about the collusion of his
tenants with officials of WAPDA he is pursuing the matter since April 1993 to 2 6-7-2000. He
though have placed copy of certain applications submitted by him to QESCO Authorities for
clearance of proceedings. Though these applications bear date of year, 2000, but these
applications are neither exhibited nor brought on record, thus of no legal value. Further, it has
not been clarified that why the petitioner remained silent during intervening period w.e.f.
1993 to 2000, as he himself deposed that he got knowledge about the mishappening in year,
1993. Apart from the same though the premi ses, against which electricity bills are claimed to
be outstanding, are in occupation of the tenants despite the same the petitioner being owner/
landlord comes within purview of term consumer, as defined in section 2 clause (c) of
Electricity Act 1910: --
"2.(c) "Consumer" means any person who is supplied with energy by a licensee, or
whose premises are for the time being connected for the purpose of a supply of energy
with the works of a licensee."
Furthermore, in case the default was made by previous tenants, who are no more in
occupation of the premises/shops then in such case the petitioner may have invoke condition
No.16 of Abridged Conditions of Supply annexed to Electricity Rules, 1937, which states as
under: -
"16. Change of Consumer .---When any person occupies any premises previously
occupied by a consumer and desires to be supplied with energy he shall as if he were
an original applicant, enter into an agreement with the department and shall, if so
required, furnish security to the department a s prescribed in these conditions of
supply, and his installation shall be re -rated by the department so that the said person
may not be held responsible for any alteration in the connected load which may have
been effected by the previous consumer without the authority of the department."
But he has failed to do so, thus he being the owner/landlord has to bear the liabilities being
consumer, thus liable to pay the charges of supply of energy.
The petitioner while appearing before the Court and recording his statement on oath has
deposed that the disputed bills are not in his name, the defendants/respondents have raised
illegal demand for payment of Rs. 138084, while in his six shops no meters are installed, nor
there is any service wire, there is no elec tricity connections in his shops and inn (Masafar
Khana). During course of cross -examination though he denied that the electricity
connections were disconnected in year, 1993 due to non payment of dues. But he has
admitted that in his plaint he has mention ed about temporary supply of electricity to the
shops. He further deposed that he supplied electricity to inn (Masafar Khana) through his
hotel, while he had taken sanction for the same orally from SDO Syed Abdul Hadi and
Captain Hamid, no written permissi on is obtained. As per petitioner's own showings that the
electricity connections installed in said shops and inn in 1981 while disconnected 6 and 17
years back, what was the reason for this disconnection nothing has been disclosed. Further,
according to h is own deposition since 1981 up till two years back there was no change in
tenants, now from last two years new tenants have occupied the shops. He did not disclose
the names of previous or present tenants. From his own statement it has come on record that
the electricity connection is supplied from his hotel to remaining six shops and inn admittedly
owned by him. In the circumstances it is clear violation of condition No.6 of Abridged
Conditions of Supply annexed to Electricity Rules 1937, which states as under: -
"6. Extension to consumer's Installation . ---The consumer's installation shall consist of
the energy -consuming apparatus (i.e. motors, lamps, fans, etc), as stated in the
application and/or connected to the Department's mains. The Department mus t be
notified of any extension being made to the installation and/or of any charges being
made in the writing, and a new application must be made to the Department for the
supply to the additional installation. In the event of any extension unauthorized by the
Department, having been made to the installation or of any increase in the maximum
demand, the Department shall be entitled to disconnect the consumer's premises from
the Departments mains, and in the event of any damage to the Department's system
resulting from such unauthorized extensions, the consumer shall pay the Depart ment
all expenses on account of and connected with such damage."
Thus in above mentioned circumstances section 26 -A of Electricity Act 1910 becomes
operational, which states as u nder: --
"26-A. Dishonest abstraction or consumption of energy .---Notwith standing anything
contained in section 23, the licensee may charge the consumer on the basis of one or
more of the following considerations for the amount of energy deemed to have b een
dishonestly abstracted, consumed or used, for the period during which the meter,
maximum demand indicator or other measuring apparatus had, in the opinion of the
licensee, remained connected, disconnected, injured, altered or prevented from
registering the amount of energy supplied or the electrical quantity contained in the
supply
(a) consumer's connected load or maximum demand in kilowatt hours during any
period;
(b) consumer's maximum consumption of energy in, kilowatt hours during any
period;
(c) consumer's load factor;
(d) the power of consumer's load;
(e) the hours and the time for which the energy is deemed to have been abstracted,
consumed or used by the consumer; and
(f) the purpose for which the energy is deemed to have been abstr acted, consumed or
used by the consumer."
In view of admission made by the petitioner he is bound to pay the amount assessed by the
respondents being the licensee. Though the electricity connections were already disconnected
years ago yet the notice for payment of outstanding dues as assessed by the respondents being
the competent authority was issued in year 2000, which he was required to pay in view of his
own admission. In case of any difference in the calculated amount and in mode of payment
the petit ioner was required. to approach the concerned Authorities as provided in Condition
No.25 of the Abridged Conditions of Supply attached to Electricity Rules 1937, which states
as under: -
"25. Disputes .-In the event of any difference or dispute arising be tween the
Department and the consumer in respect of any matter connected with the supply
which cannot be determined by these conditions, or by the terms of any agreement
between the Department and the consumer, and in the event of any difference or
dispute arising as to the interpretation of these conditions or of any terms of any
agreement between the Department and the Consumer, the matter shall be determined
in accordance with the provisions of the Act or by reference to the Electric Inspector.
And in th e event of any difference or dispute arising that cannot be determined as
aforesaid; the decision of the West Pakistan Government shall be final and binding on
all parties to the difference of dispute."
The petitioner though asserted that he approached t he Authorities, but his grievance was not
redressed, but he has not placed on record anything relevant to prove this assertion. Further,
the petitioner in his plaint showed his willingness for payment of outstanding dues on such
terms and conditions mentio ned therein. Such relief cannot be granted in favour of the
petitioner as up till present he has neither approached the Authorities for determining the
dispute, nor he has paid any amount in respect of dues to establish his bona fide, apart from
the fact t hat the electricity connections have already been disconnected. Further, as discussed
above he has also violated the condition No.6 as mentioned hereinabove, thus due to his act
of dishonest abstraction and consumption of energy until and unless he paid th e outstanding
amount as assessed by the licensee the relief of restoration of electricity supply cannot be
granted in his favour.
In view of above discussion though the trial Court and the appellate court arrived to similar
decision thereby dismissed the suit in view of section 54 -C of Electricity Act, 1910, which
was surely an erroneous finding. Further, the trial Court while deciding Issue No.3 arrived to
the conclusion that the defendant has authority to make demand for outstanding amount from
the plai ntiff in respect of consumer bills which had been issued on names of the tenants. But
while deciding Issue No.4, which is in respect of wrongly compelling the plaintiff for making
payment of outstanding amount on basis of self calculated meters, readings w ithout
physically examining the meters, comes, to the conclusion that as meters have already been
removed, therefore, the meter reader has self -calculated the readings. The issue is decided in
favour of the petitioner. The trial Court has not properly appr eciated the material present on
record and the relevant provisions of law. As per admissions made by the petitioner, as
mentioned in preceding paragraphs, there was no occasion of obtaining meter readings as
admittedly no meters were present at the site at the date of issuance of the Notice. Thus in the
circum stances the provisions of section 26 -A of Electricity Act, 1910 shall come into field
and are to be observed. The burden was upon the petitioner to establish that charges are not
assessed as per relev ant provisions of law and rules. But he through evidence only tried to
establish that there was no electricity connections in the premises in question, as such wrong
bills have been issued in names of tenants which he is not bound to pay. There is no evide nce,
which was required to be produced by the petitioner that the charges are wrongly calculated.
Both the courts below failed to appreciate the pleadings of the parties and the admissions
made by the petitioner, thus arrives to an erroneous conclusion, wh ich is required to be set
aside.
In view of above discussion the findings of the trial as well as appellate courts made in
judgments dated 17 -2-2003 and 1 -7-2003 to the extent of merits of the case and in respect of
section 54 -C of Electricity Act, 1970 being erroneous are hereby set aside. As the petitioner
has failed to make out any case on merits, therefore, the suit filed by him is dismissed being
without merits.
The petition is disposed of in above terms, with no orders as to costs.
A.R.K.192/Q Order accordingly.
A.R.K./101/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.